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3024 TRAMV Development AgreementORDINANCE NO. 3024 AN ORDINANCE OF THE CITY OF MOSES LAKE, WASHINGTON, APPROVING THE MITCHELL DEVELOPMENT II LLC DEVELOPMENT AGREEMENT REGARDING THE “THE REFUGE AT MAE VALLEY FIRST ADDITION” MAJOR SUBDIVSION Recitals: 1. The City is a noncharter optional code city incorporated under the laws of the State of Washington, with authority to enact laws and enter into development agreements to promote the health, safety, and welfare of its citizens. 2. The City has the authority to enter into Development Agreements pursuant to RCW 36.70B.170 which provides: a. The Legislature finds that the lack of certainty of the approval of development projects can result in a waste of public and private resources, escalate housing costs for consumers and discourage the commitment to comprehensive planning which would make maximum efficient use of resources at the least economic cost to the public. Assurance to a development project applicant that upon government approval the project may proceed in accordance with existing policies and regulations, and subject to conditions of approval, all as set forth in a development agreement, will strengthen the public planning process, encourage public participation and comprehensive planning, and reduce the economic cost of development. 3. Pursuant to RCW 36.70B.200, the City Council conducted a public hearing on May 9, 2023, for the proposed Development Agreement at its regularly scheduled meeting. 4. The City and the Applicant have reached agreement regarding the terms and conditions of a Development Agreement related to the development of the Project, which Development Agreement, together with its Exhibit A, is attached hereto and incorporated herein. NOW THEREFORE. THE CITY COUNCIL OF THE CITY OF MOSES LAKE, WASHINGTON DO ORDAIN AS FOLLOWS: Section 1. Public Interest. The City Council for the City of Moses Lake, Washington finds, following a public hearing process. that it is in the public interest for the City or Moses Lake to approve the Development Agreement with Mitchell Development II LLC related to the “The Refuge at Mae Valley First Addition” Major Subdivision. Document Ref: RQRSB-YYTYN-WRAG3-T3Y3J Page 1 of 3 Section 2. Development Agreement Approved. The City Council for the City of Moses Lake hereby approves the Mitchell Development II LLC Development Agreement (“Agreement") related to the “The Refuge at Mae Valley First Addition” attached herein as Exhibit A and authorizes the City Manager to execute the Agreement substantially in the form attached and to lake such other actions as may be necessary to effect this Agreement. Section 3. Compliance with other law. Nothing in the Ordinance shall be construed as excusing the Applicant from compliance with all federal, state, or local statutes, ordinances, or regulations applicable to this development other than expressly set forth herein. Section 4. Corrections. The City Clerk and the codifiers of this ordinance are authorized to make necessary clerical corrections to this ordinance including, but not limited to, the correction of scrivener’s / clerical errors, references, ordinance number, section/subsection numbers and any thereto. Section 5. Severability. If any section of this ordinance is found to be unconstitutional or invalid as written or as applied to any particular person or circumstances, no other section of the ordinance shall be deemed to be invalid, but rather, should be deemed to have been enacted independently and without regard to the section affected. Section 6. Effective Date. This ordinance shall take effect and be in force five (5) days after its passage and publication of its summary as provided by law. Adopted by the City Council of the City of Moses Lake, WA and signed by its Mayor on May 9, 2023. _____________________________________ Don Meyers, Mayor ATTEST: ____________________________________ Debbie Burke, City Clerk Document Ref: RQRSB-YYTYN-WRAG3-T3Y3J Page 2 of 3 APPROVED AS TO FORM: __________________________________ Katherine L. Kenison, City Attorney Martinez Swartz Myers Fancher Madewell Eck Skaug Vote: Aye Aye Aye Absent Aye Aye Aye Date Published: May 15, 2023 Date Effective: May 20, 2023 Document Ref: RQRSB-YYTYN-WRAG3-T3Y3J Page 3 of 3 Signature Certificate Reference number: RQRSB-YYTYN-WRAG3-T3Y3J Document completed by all parties on: 12 May 2023 18:57:37 UTC Page 1 of 1 Signer Timestamp Signature Mayor Don Myers Email: dmyers@cityofml.com Recipient Verification: Sent:12 May 2023 15:43:49 UTC Viewed:12 May 2023 15:54:30 UTC Signed:12 May 2023 15:54:51 UTC ✔Email verified 12 May 2023 15:54:30 UTC IP address: 162.246.30.165 Location: Moses Lake, United States Katherine Kenison Email: kkenison@basinlaw.com Recipient Verification: Sent:12 May 2023 15:43:49 UTC Viewed:12 May 2023 17:25:03 UTC Signed:12 May 2023 17:25:13 UTC ✔Email verified 12 May 2023 17:25:03 UTC IP address: 173.209.171.7 Location: Moses Lake, United States Debbie Burke Email: dburke@cityofml.com Sent:12 May 2023 15:43:49 UTC Viewed:12 May 2023 15:43:52 UTC Signed:12 May 2023 18:57:37 UTC IP address: 63.135.54.162 Location: Moses Lake, United States Signed with PandaDoc PandaDoc is a document workflow and certified eSignature solution trusted by 40,000+ companies worldwide. RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Moses Lake Planning Department PO Box 1579 Moses Lake, WA 98837 DEVELOPMENT AGREEMENT This development agreement (“Agreement”) is made and entered into this ___ day of _____________, 2023, between the City of Moses Lake (“City”), and Mitchell Development II, LLC, a limited liability company organized under the laws of the State of Washington (“Developer”). Recitals 1. RCW 36.70B.170 authorizes the execution of a development agreement between the local government and a person having ownership or control of real property within its jurisdiction. 2. RCW 36.70B.170 requires a development agreement to set forth the development standards and other provisions that shall apply to govern and vest the development, use, and mitigation of the development of the real property for the duration specified in the agreement. The purpose of this Agreement is to recognize and vest the development standards and other provisions specified below that apply to and govern development and use of the Property. 3. For the purposes of this Agreement, “development standards” includes but is not limited to all of the development standards listed in RCW 36.70.B.170(3) as currently enacted or as hereafter amended. 4. This Agreement by and between the City and the Developer relates to the development known as The Refuge at Mae Valley First Addition Major Subdivision which is located adjacent to Montana Street and Westlake Road in Moses Lake, Washington. 5. The following events have occurred in the processing of the Developer’s major plat application: 5.1. A public hearing on the preliminary plat application for the major subdivision was held by the Hearing Examiner on May 10, 2022. The Hearing Examiner's decision recommending approval of the major subdivision was issued on June 24, 2022. 5.2 Following a public hearing on May 9, 2023 pursuant to RCW 36.70B.200, the City Council approved Ordinance No. 3024 authorizing the City Manager to execute this Agreement with the Developer. AGREEMENT The parties agree as follows: General Provisions Section 1. The project. The project is the development and use of the property consisting of the major subdivision of 106 residential lots on approximately 30.27 acres in the R-2 Zone. The property is currently within the City’s incorporated limits. The subdivision will be served by City sanitary sewer, stormwater, City water, and City streets. Streets and utilities will be extended and constructed in conformance with Moses Lake Street and Utility Construction design standards consistent with the provisions of this Development Agreement. Section 2. The subject property. The project site is described in Exhibit A which is attached hereto and incorporated herein by this reference, and herein will be referred to as the “Property”. Section 3. Definitions. 3.1 “City Manager” means the City Manager of the City of Moses Lake. 3.2 “Adopting Ordinance” means the Ordinance which approves this Agreement, as required by RCW 36.70B.200. 3.3 “Budget” means the agreed budget and cost-share as identified in the attached Exhibit “B” which is attached hereto and incorporated herein by this reference. Changes, amendments, or revisions to the budget and cost-share must be mutually agreed upon in writing and signed by all parties to this Agreement. 3.4 “Certificate of Occupancy” means either a certificate issued after inspections by the City authorizing a person or persons in possession of property to dwell or otherwise use a specified building or dwelling unit, or the final inspection if a formal certificate is not issued. 3.5 “Cost of Construction” means the actual cost of construction including, but not limited to: Mobilization; Dewatering; Unsuitable Soils Removal; Imported Materials; Soil Stabilization; Erosion Control; and Installation and Materials related to the Road and Utility Installation. 3.6 “Council” means the duly elected legislative body governing the City of Moses Lake. 3.7 “Design Standards” means the City of Moses Lake Community Development standards as adopted by the City and dated February 23, 2021, by Resolution 3845. 3.8 “Effective Date” means the effective date of the Adopting Ordinance, subject to full satisfaction of the requirements of Section 23 herein. 3.9 “Existing Land Use Regulations” means the ordinances adopted by the City of Moses Lake in effect on the Effective Date, including the adopted ordinances that govern the permitted uses of land, the density and intensity of use, and the design, improvement, construction standards, and specifications applicable to the development of the Property, including, but not limited to, the Comprehensive Plan, the City's Official Zoning Map and development standards, the Public Works Construction Standards, SEPA, and all other ordinances, codes, rules, and regulations of the City establishing subdivision standards, codes, rules, and regulations of the City establishing subdivision standards, park regulations and building standards. “Existing Land Use Regulations” do not include non-land use regulations, which include tax and impact fees. 3.10 “Landowner” is the party who has acquired any portion of the Property from the Developer who, unless otherwise released as provided in this Agreement, shall be subject to the applicable provisions of this Agreement. The “Developer” is identified in the section 5 of this Agreement. 3.11 “Project” means the anticipated development of the Property, as identified in Sections 1 and 2 above, and as provided in all associated permit/approvals, and all incorporated exhibits. Section 4. Exhibits. Exhibits to this Agreement are as follows: 4.1 Exhibit “A”: The Refuge at Mae Valley First Addition Preliminary Plat Map. 4.2 Exhibit “B”. Scope of Work for Developer construction of public roadway on Well Site 31. Section 5. Parties to the Development Agreement. The parties to this Agreement are: 5.1 The “City” is the City of Moses Lake, 421 East Balsam Avenue, Moses Lake, WA 98837. 5.2 The “Developer” is Mitchell Development II, LLC, a Washington Limited Liability Company which is a private enterprise which owns the Property in fee, and whose mailing address is 910 Traffic Avenue, Sumner, WA 98390. 5.3 The “Landowner”. From time to time, as provided in this Agreement, the Developer may sell or otherwise lawfully dispose of any portion of the Property to a Landowner who, unless otherwise released, shall be subject to the applicable provisions of this Agreement related to such Property. Section 6. Project is a Private Undertaking with the City of Moses Lake for Street and Utility Improvements as Identified Herein. It is agreed between the parties that the Project is a private development, and that the City will enter into this Agreement with the Developer; and that the City has no interest therein except as authorized in the exercise of the governmental functions and this Agreement. The parties have agreed to the scope of work as stipulated and identified in Sections 12.1 and 12.2 and shown in the attached Exhibit B. Section 7. Term of the Agreement. This Agreement shall commence on the Effective Date of the Adopting Ordinance approving this Agreement and shall continue in force for a period of two (2) years unless otherwise extended or terminated as provided for herein. Following the expiration of the term or any extension thereof, or if sooner terminated, this Agreement shall have no force and effect, subject however, to any surviving post-termination obligations of the Developer or Landowner. This Agreement shall be recorded with the Grant County Auditor. Section 8. Vested Rights of Developer. During the term of this Agreement, unless sooner terminated in accordance with the terms hereof, and developing the Subject Property consistent with the project described herein, Developer is assured, and the City agrees, that the development rights, obligations, terms, and conditions specified in this Agreement (regarding the Project described herein), are fully vested in the Developer. Said development rights obligations, terms, and conditions may not be changed or modified by the City, except as may be expressly permitted by, and in accordance with, the terms and conditions of this Agreement, including the exhibits hereto, or as expressly consented thereto by the Developer. Section 9. Permitted Uses and Development Standards. The permitted uses, the density and intensity of the use, the maximum height and size the proposed buildings, provisions for reservations and dedications of land or payment of fees in lieu of dedication for public purposes, the construction, installation, and extension of public improvements, development guidelines and standards for the development of the Property, shall be those set forth in (a) this Agreement, (b) the City of Moses Lake Municipal Code, the City's official design standards and construction standards (except to the extent they conflict with this Agreement), (c) the Ordinance approved by the City Council, (d) the approvals identified herein and the Council's decision, and (e) all exhibits incorporated herein. Section 10. Further Discretionary Actions. Developer acknowledges that the Existing Land Use Regulations contemplate the exercise of further discretionary powers by the City. These powers include, but are not limited to, review of additional permit application under SEPA. Nothing in this Agreement shall be construed to limit the authority or obligation of the City to hold legally required public hearings, or to limit the discretion of the City and its officers or officials in complying with or applying Existing Land Use Regulations. Section 11. Existing Land Use Fee. Land use fees adopted by the City by ordinance as of the Effective Date of this Agreement may be increased from time to time. Such increased land use fees may apply to permits and approvals for the Property if such fees may apply to similar applications and projects in the City. Section 12. Montana Street and Lesser Loop Improvements. The Developer agrees to design, construct, and pay all associated costs for the required street and utility improvements including, but not limited to road surface expansion, sidewalk, curb and gutter (Exhibit B) fronting Lot 1 Block 1 City of Moses Lake Well 31 Short Plat. In consideration for these Developer improvements, the City of Moses Lake agrees to permit the Developer to utilize a portion of the City’s Well 31 Site for the construction of a public roadway (Exhibit A). Section 13. Testing. Materials testing is the responsibility of the Developer’s contractor. Testing will be in conformance with the standard testing procedures in conformance with adopted City, WSDOT, and AASHTO standards. Section 14. Default. 14.1 Subject to extensions of time by mutual consent in writing, failure or delay by either party or Landowner not released from this Agreement, to perform any term or provision of this Agreement shall constitute a default. In the event of alleged default or breach of any terms or conditions of this Agreement, the party alleging such default or breach shall give the other party or Landowner notice of the default in writing, specifying the nature of the alleged default and manner in which set default may be cured. For thirty (30) days after delivery of the default notice, the party or Landowner charged shall not be considered in default for purposes of termination or institution of legal proceedings. 14.2 After notice of default and expiration of the thirty (30) day period, if such default has not been cured or is not being diligently cured in a manner set forth in the notice, the other party or Landowner to this Agreement may, at its option, institute legal proceedings pursuant to this Agreement. In addition, the City may decide to file an action to enforce the City's Code, and to recover penalties, fees, and costs as provided in the City’s Code for violations or breaches of this Agreement and or the City’s code. Section 15. Termination. This Agreement shall expire end or terminate as provided below: 15.1 This Agreement shall expire and be of no further force and effect if the development contemplated in this Agreement and all the permits and/or approvals issued by the City for such Development are not substantially underway prior to expiration of such permits and/or approvals. Nothing in this Agreement shall extend the expiration date of any permit or approval issued by the City for any development of the Property. 15.2 This Agreement shall expire and be of no further force and effect if the Developer does not construct the Project as contemplated by the permit and approvals identified in this Agreement, and/or submits application for development of the Property that are inconsistent with such permits and approvals. 15.3 This Agreement shall terminate upon either (a) the expiration of the term identified in section 7, or (b) when the Property has been fully developed, whichever first occurs, and all the Developer’s obligations in connection therewith are satisfied as determined by the City. Upon termination of this Agreement, the City shall record a notice of such termination in a form satisfactory to the County that the Agreement has been terminated. This Agreement shall automatically terminate and be of no further force and effect as to any dwelling unit or non-residential building and the lot or parcel upon which such residence or building is located (except for design standards and obligations to dedicate property to the City as set forth herein), when it has been approved by the City for Occupancy. Section 16. Effect upon Termination on Developer Obligations. Termination of this Agreement as to the Developer of the Property or any portion thereof shall not affect any of the Developer’s obligations to comply with (a) the City's Comprehensive Plan and the terms and conditions thereof, (b) any applicable zoning code(s) or subdivision map or other land use entitlements approved with respect to the Property, or any other conditions of the development specified in the Agreement to continue after the termination of this Agreement or (d) obligations to pay assessments, liens, fees or taxes. Section 17. Effect of Termination on City. Upon termination of this Agreement as to the development of the Property, or any portion thereof, the entitlements, conditions of development, limitations of fees and all other terms and conditions of this Agreement shall no longer be vested hereby with respect to the Property affected by such termination, if vesting of such entitlements, conditions or fees may then be established for such Property pursuant to the existing planning and zoning laws. Section 18. Assignment and Assumption. The Developer shall have the right to sell, assign, or transfer this Agreement with all its rights, title, and interest therein to any person, firm, or corporation at the time during the term of this Agreement subject to the prior written approval of the City which shall not be unreasonably withheld. Developer shall provide the City with written notice of any intent to sell, assign, or transfer all or a portion of the Property, at least 30 days in advance of such action. Section 19. Covenants Running with the Land. The conditions and covenants set forth in this Agreement and incorporated herein by the Exhibits shall run with the land and the benefits and burdens shall bind and inure to the benefit of the parties. The Developer, Landowner, and every purchaser, assignee, or transferee of an interest in the Property, or any portion thereof, shall be obligated and bound by the terms and conditions of this Agreement, and shall be the beneficiary thereof, but only with respect to the Property, or such portion thereof, sold, assigned, or transferred to it. Any such purchaser, assignee, or transferee shall observe and fully perform all the duties and obligations of a Developer contained in this Agreement, as such duties and obligations pertaining to the portion of the Property sold, assigned, or transferred to it. Section 20. Amendments to Agreement: Effect of Agreement on Future Actions. This Agreement may be amended or extended by mutual consent of all parties, provided that any such Amendment shall be in writing and follow the process established by law for the adoption of a Development Agreement (see RCW 36.70B.200). However, nothing in the Agreement shall prevent the City from making any amendment to its Comprehensive Plan, Zoning Code, Official Zoning Map, Design Standards or development regulations affecting the Property during the next two years, as the City Council may deem necessary to the extent required by a serious threat to public health and safety. Section 21. Releases. Subject to prior written approval of the City, Developer, and any subsequent Landowner, may free itself from further obligations relating to the sold, assigned, or transferred Property, provided that the buyer, assignee, or transferee expressly assumes the obligations under this Agreement as provided herein. Section 22. Notices. Notices, demands, and correspondence to the City and Developer shall be by pre-paid, first-class mail to the addresses of the parties as designated in Section 5. Notice to the City shall be to the attention of the City Manager. Notices to the subsequent Landowners shall be required to be given by the City only for those Landowners who have given the City written notice of their address for such notice. The parties hereto may, from time to time, advise the other of new address for such notices, demands, or correspondence. Section 23. Applicable Law and Attorney's Fees. This Agreement shall be construed and enforced in accordance with the laws of the State of Washington. If litigation is initiated to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees and costs from the non-prevailing party. Venue for any action shall lie in the Superior Court of Grant County, Washington, or if the dispute involves violation of federal law, in the U.S. District Court of Eastern Washington. Section 24. Third Party Legal Challenge. If any legal action or special proceeding is commenced by any third person or entity other than the parties to this Agreement challenging this Agreement or any provisions herein, the City may elect to tender the defense of such lawsuit or individual claimed in the lawsuit to Developer and/or Landowner(s). In such event, Developer and/or such Landowner, shall hold the City harmless from and shall defend and indemnify the City from and against all costs and expenses incurred in the defense of such lawsuit or individual claims in the lawsuit, not including but limited to, attorney’s fees and expenses of litigation, and damages awarded to the prevailing party or parties of such litigation. The Developer and/or Landowner shall not settle any lawsuit without the prior written consent of the City. The City shall act in good faith and shall not unreasonably withhold consent to settle. Section 25. Specific Performance. The parties specifically agree that damages are not an adequate remedy for breach of this Agreement, and that the parties are entitled to compel specific performance of all material terms of this Development Agreement by any party in default hereof. Section 26. Severability. If any portion of this Agreement, or the application of a portion, is determined unenforceable or unlawful by a court of competent jurisdiction, the remainder of the Agreement, or the application of the portion in question to the remainder of the Agreement, shall not be affected. Section 27. Construction. In the event of a dispute between the parties as to the meaning of terms, phrases or specific provisions of this Agreement, the authorship of this Agreement shall not be cause for the Agreement to be construed against any party nor in favor of any party. Section 28. Integration. This Agreement contains all terms of the Agreement between the parties. No other writings, communication, or representations are part of this Agreement. Section 29. Waiver. No provision of this Agreement shall be deemed to have been waived unless that waiver is in writing signed by the waiving party. Failure by any of the parties to insist upon the strict performance of any provision of this Agreement, or to exercise any right or remedy upon a breach, shall not constitute a waiver of the breach of that provision or of any other provision. A waiver of one provision of this Agreement shall not be deemed a waiver of any other provision of this Agreement or a waiver of that provision with respect to any subsequent breach, unless expressly provided in writing. Section 30. Authority. Each of the parties to this Agreement represents, warrants and covenants that he, she or it has the full power and authority to execute, deliver, and perform this Agreement, and that such execution, delivery and performance has been duly authorized. Each of the undersigned agents of the parties represents and warrants his or her authority to sign this Agreement on behalf of that party. Section 31. Counterparts. This Agreement may be executed in any number of counterparts, all of which when taken together shall constitute one agreement binding on all of the parties to the Agreement, notwithstanding that all such parties are not signatories to the same counterpart. The parties hereto have caused this Agreement to be executed on the dates set forth below. OWNER/DEVELOPER: Mitchell Development II, LLC By: ______________________________________ Date: _______________________ STATE OF WASHINGTON COUNTY OF _________________ I certify that I know or have satisfactory evidence that__________________________ signed this instrument, on oath stated that he/she was authorized to execute the instrument as __________________ for _____________________________ and acknowledged it to be the free and voluntary act of such party for the uses and purposes mentioned in this instrument. DATED: ____________________, 2023 ____________________________________ Notary Public for Washington State My commission expires________________ CITY OF MOSES LAKE: By: _______________________________________ Date: ______________________ Allison Williams, City Manager STATE OF WASHINGTON COUNTY OF GRANT I certify that I know or have satisfactory evidence that__________________________ signed this instrument, on oath stated that he/she was authorized to execute the instrument as __________________ for _____________________________ and acknowledged it to be the free and voluntary act of such party for the uses and purposes mentioned in this instrument. DATED: ____________________, 2023 ____________________________________ Notary Public for Washington State My commission expires________________ APPROVED AS TO FORM: __________________________________ Katherine Kenison, City Attorney Exhibit B Construction Plan Set Well No. 31 Property